In HB v A Local Authority and The Local Government Association (2017) EWHC 524 (Fam) MacDonald J rejected an argument that the High Court had by reference to ECHR Articles 6 and/or 8 to order a local authority to fund the legal costs of a person denied legal aid on means test grounds without breach of the ECHR and lawfully.  The argument constituted an impermissible attempt to circumvent the jurisdiction of the Administrative Court operating by reference to judicial review principles.  Nor did the inherent jurisdiction of the High Court with respect to children give it the power to require a local authority to incur expenditure to fund the legal representation of a litigant who had been lawfully refused legal aid in accordance with the statutory legal aid scheme put in place by Parliament. Authority for public expenditure required clear statutory authority.  This had to be in clear, express and unambiguous language.  Within that context, a general power or duty could not be used to circumvent a clear statutory code. The examples of cost funding jurisdictions relied on as indicating that the Court could properly find a power under the inherent jurisdiction to make a costs funding order against the local authority each had as their foundation a clear and unambiguous statutory power to award funds for a specific purpose.  There was no suggestion in the statutory code that Parliament intended the civil Courts to be able to make orders providing the funding for advice and representation outside the terms of the statutory scheme.  In circumstances where the Legal Aid Agency had taken a lawful decision by reference to a lawful and comprehensive statutory scheme to refuse legal aid, an order under the inherent jurisdiction for public funding from an alternate public authority for the same purpose would plainly constitute an attempt to sidestep a clear statutory code using a general power.

The unanimous Supreme Court Judgment on 8 February 2017 (2017) UKSC 8 on the Northern Ireland application for judicial review by Denise Brewster, allowing her appeal from a majority Judgment of the Northern Ireland Court of Appeal (2013) NICA 54 concerned a requirement in the Northern Ireland Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009 (the “2009 Regulations”) that unmarried co-habiting partners be nominated by their pension scheme member partner in order to be eligible for a survivor’s pension. There is no similar nomination requirement for married or civil partner survivors. The Northern Ireland High Court held that the requirement of nomination of a cohabiting partner in the 2009 Regulations was incompatible with Article 14 of the European Convention on Human Rights (which prohibits discrimination) read together with Article 1 Protocol 1 (peaceful enjoyment of possessions) (“A1P1”). The Court of Appeal allowed the respondents’ appeal, finding that the nomination requirement was neither unjustified nor disproportionate. In the meantime, prompted by the judgment of the High Court, the equivalent regulations in England and Wales and in Scotland were amended to remove the nomination requirement in those schemes. When the appellant became aware of these changes, she applied for her appeal to be re-opened. Read more »

In Ansari v Aberdeen City Council (2017) CSIH 5 the Inner House of the Court of Session held that the Council owed no relevant duty to Mr Ansari under ECHR 5 to provide a reasonable opportunity for him to rehabilitate himself, in accordance with R (Haney) v Secretary of State for Justice (2015) AC 1344.  He claimed that both Scottish Ministers and the Council were in breach of that duty.  The issue was whether a relevant case had been made against the Council.  He argued that all public authorities were bound to act compatibly with ECHR rights, and that for the rights he claimed to be effective, both respondents should be subject to the duty to provide him with a reasonable opportunity for rehabilitation, having regard to the various statutory responsibilities on the Council. There was a risk of a gap he argued between the obligations arising in statute and the prisoner making progress in the phase of being partly in prison and partly outside prison.

Delivering the opinion of the Court, Lord Bracadale, who sat with Lady Paton and Lord Malcolm, said, at paragraph 26, that the duty in question was imposed on the State. It had the power to detain the prisoner relying on Article 5(1)(a), and implicitly also the duty to provide the prisoner with a reasonable opportunity to rehabilitate himself and to demonstrate that he no longer presented an unacceptable danger to the public. The Scottish Ministers accepted that the duty is incumbent on them.

“In our view”, he continued, at paragraph 27, “the Lord Ordinary was correct to hold that the local authority is in a different position. It is not responsible for the detention or release of the prisoner. It is not required to justify the continued detention for public protection reasons. The role of the local authority is to provide assistance in certain areas of the rehabilitation process before and after release. In carrying out its role in relation to rehabilitation of a prisoner the local authority operated on behalf of the Scottish ministers”. Since the Ministers accepted the duty on them, “no question of a duty gap arises”.

The fact that the Council was a public authority “does not create a freestanding duty to provide the petitioner with reasonable opportunities for rehabilitation in circumstances in which the [council is] not responsible for his imprisonment or release… The local authority having no responsibility for the decision to continue the detention of the petitioner, there is no basis for reading into article 5 an implied duty incumbent on it to facilitate his release”: paragraph 29.

In GD v Wakefield Council and West Yorkshire Police (2016) EWHC 3312 (Fam) Cobb J awarded damages for the significant harm caused by local and police authorities that had breached the ECHR Articles 6 and 8 rights of a mother and her two children in the conduct of investigations and public law proceedings under Part IV of the Children Act 1989.

In Hackney LBC v Haque (2017) EWCA Civ 4 the Council as local housing authority succeeded in an appeal against a decision that it had failed to comply with the Public Sector Equality Duty when determining whether accommodation which it provided pursuant to its duties under Part VII of the Housing Act 1996 (“HA 1996”) to a disabled homeless man was suitable. The duty in question was the full housing duty under Section 193.  These duties had been considered by the Supreme Court in Hotak v Southwark LBC (2016) AC 811. In the Hotak case, the PSED impacted upon the housing authority’s determination of the question whether the applicant had a priority need ie whether the authority owed him the full housing duty at all. In the Haque case the PSED impacted upon the question, raised by an applicant to whom the full duty is owed, whether the accommodation already provided was “suitable” within the meaning of HA Sections 206 and 210.  The PSED is of course engaged in the course of any decision-making about the suitability of accommodation made available for occupation under HA Section 193(2), when the applicant is in priority need for accommodation because he is vulnerable as a result of disability. This is because that person has a disability within the meaning of Section 6 of the Equality Act 2010 (“EA”), and because disability is a relevant protected characteristic which attracts the PSED, under EA Section 149. Read more »

In the light of the PSED under Section 149 of the Equality Act 2010, what is the extent of the duty of a local housing authority under Section 184 of the Housing Act 1996 to inquire into whether the children of a mother applying for homelessness assistance may have a disability as defined by Section 6 of the 2010 Act requiring special arrangements to be made? That is the question considered by the Court of Appeal in Birmingham City Council v Wilson [2016] EWCA Civ 1137. There was a good deal of common ground between the parties on the legal issues which the Court approved and applied:-

(1)       The relevant duty of inquiry, to which the City Council was subject, whether under Section 184 of the 1996 Act, or under general principles of public law, is an obligation to take reasonable steps to inform itself of matters relevant to the carrying out of its tasks of assessing the application under Section 193 of the 1996 Act, and of doing so in a manner compatible with its PSED under Section 149 of the 2010 Act;

(2)       As to the scope of the duty of inquiry under general public law, it is for the decision-maker and not the Court, subject to Wednesbury review, to decide upon the manner and intensity of enquiry to be undertaken into any relevant factor accepted or demonstrated as such;

(3)       Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely;

(4)       A Court should be hesitant to intervene upon review in a housing appeal if the appellant’s ground of appeal relates to a matter which the reviewing officer was never invited to consider, and which was not an obvious matter he should have considered;

(5)       The impact of the PSED now contained in Section 149 of the 2010 Act is to introduce a culture of greater awareness of the existence and legal consequences of disability;

(6)       In circumstances in which a decision-maker under Section184 of the 1996 Act (or a reviewing officer under Section 202) is not invited to consider an alleged disability, it would be wrong to say that he or she should consider disability only if it is obvious;

(7)       On the contrary, he or she needs to have due regard to the need to take steps to take account of it;

(8)       The relevant question has, in the light of the PSED, become whether there has been a failure to make inquiry in relation to some feature of the evidence presented as “raised a real possibility” of disability in a relevant sense; and

(9)       The question whether the evidence presented raises a “real possibility” that any applicant for housing assistance is disabled is to be assessed by looking to see whether the Council officer subjectively considers that such a “real possibility” arises or acts in a Wednesbury irrational way in concluding that it does not.

In R (RLT Built Environment Ltd) v Cornwall Council (2016 EWHC 2817 (Admin) Hickinbottom J dismissed a challenge to the decision of the Council as LPA to hold a Local Referendum on the making of the St Ives Neighbourhood Development Plan.  The Claimant contended that the Plan includes Policies on future housing provision, including in particular residency requirements intended to limit second home ownership in the St Ives area, which are incompatible with ECHR Article 8 (and also EU law on Strategic Environmental Assessments).  The Judge, at paragraphs 81-83, set out the following propositions with respect to the relationship between the domestic planning scheme and ECHR Article 8 and in particular planning control, eg decisions in respect of planning permission or enforcement:-

1. Article 8 does not give a right to a home, or to have a home in a particular place;
2. However, where someone has a home in a particular dwelling, it may interfere with the Article 8 rights of him and/or his family to require him/them to move;
3. Whilst those rights demand “respect”, they are of course not guaranteed: in this context, as much as any other, the public interest and/or the rights and interests of others may justify interference with an individual’s Article 8 rights;
4. Where Article 8 rights are in play in a planning control context, they are a material consideration; and any interference in such rights caused by the planning control decision has to be balanced with and against all other material considerations, the issue of justification for interference with Article 8 rights effectively being dealt with by way of such a fair balance analysis;
5. That balancing exercise is one of planning judgment;
6. Consequently, it may be amenable to more than one, perfectly lawful, result;
7. The Court will interfere only if the decision is outside the legitimate range;
8. Indeed, in any challenge, the Court will give deference to the decision of the primary decision-maker, because he has been assigned the decision-making task by Parliament, and he will usually have particular expertise and experience in the relevant area;
9. Such a decision-maker will be accorded a substantial margin of discretion;
10. The deference and margin of discretion will be the greater if he has particular expertise and experience in the relevant area, and/or if he is acting in a quasi-judicial capacity (such as an Inspector);
11. If the decision-maker has clearly engaged with the Article 8 rights in play, and considered them with care, it is unlikely that the Court will interfere with his conclusion;
12. Article 8 rights are, of course, important: but it is not to be assumed that, in an area of social policy such as planning, they will often outweigh the importance of having coherent control over town and country planning, important not only in the public interest but also to protect the rights and freedoms of other individuals;
13. In practice, cases in which the Court will interfere are likely to be few;
14. These propositions apply equally to decisions made in respect of plans and programmes in the planning field;
15. Indeed, given that planning plans provide a framework for decision-making in individual cases – and, generally, human rights cannot be considered in a vacuum but only in the application of law and policy to an individual case; the margin of appreciation allowed to planning authorities in preparing such plans must be particularly broad.
16. Furthermore, in considering whether a statutory scheme (including policy) is compliant with Article 8, it is necessary to look at the scheme as a whole, including the checks and balances that are designed to protect – or have the effect of protecting – an individual from any potential breach of Article 8;
17. A regime is compliant with Article 8 if, as a whole, it is capable of protecting relevant Article 8 interests.

In R (Ghulam) v SSHD (2016) EWHC 2639 (Admin) Flaux J held at paras 329/330 that (1) what is required is a realistic and proportionate approach to evidence of compliance with the PSED, not micro-management or a detailed forensic analysis by the Court, (2) the PSED, despite its importance, is concerned with process, not outcome, and the Court should interfere only in circumstances where the approach adopted by the relevant public authority is unreasonable or perverse, and (3) it is not for the Court to substitute its decision as to the weight to be given to equality considerations and the statutory criteria if satisfied that the decision maker has complied with its duty.

GPOC In R (GS) v Camden LBC (2016) EWHC 1762 (Admin) it was held that the authority was under a duty to exercise its general power of competence under Section 1 of the Localism Act 2011 so as to provide accommodation when there would otherwise be a breach of ECHR Article 3.

As is well known, Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right, and Section 7(5) provides that proceedings in which a person claims that a public authority has acted in a way which is made unlawful by Section 6(1) must be brought before the end of (a) the period of one year “beginning with the date on which the act complained of took place” or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances.  By Section 6(6) “act” includes a failure to act.  In O’Connor v Bar Standards Board [2016] EWCA Civ 775 breach of Article 14 of the Convention in conjunction with Article 6 was alleged.  The claim was held to be barred by Section 7(5).  Lord Dyson MR observed:

“19.      … As a matter of ordinary language, the wording of section 7(5)(a) contemplates that an “act” is a single event which occurred on a single date. No express provision is made for an act which extends over a period of time. There is no difficulty in applying this approach in the paradigm case of a single act which takes place at a clearly identifiable point of time. The act should not be confused with its consequences. If it takes place more than one year before proceedings are brought, the claim is barred by section 7(5)(a) even if its consequences do not appear until later. There are also cases where the complaint is a failure to act. It may be difficult to determine when a failure to act occurs. This problem does not, however, arise in the present case.

20. There are also cases … where the question is whether the acts complained of are to be regarded as a single continuing act or as a series of discrete acts with continuing consequences. … it is not always easy to decide how to classify the acts in such a case. It will depend on the particular circumstances and the nature of the particular complaint.”

A decision to resist an appeal, and the implementation of that decision could not sensibly be seen as a continuation of the original decision to prosecute.

Elias LJ said:

“37.      …. On the appellant’s analysis, many acts which are plainly one-off would retrospectively be converted into continuing acts simply by virtue of being challenged. Take a case where a person claims a social welfare benefit, is refused, and challenges that decision by a process of internal appeal. The department can at all times revoke the decision and pay the benefit. The decision to refuse the benefit itself could not properly be described as a continuing act; it is manifestly a single act, albeit with potentially continuing adverse consequences. Yet on the appellant’s analysis it becomes a continuing act once it is challenged simply by virtue of the fact that the appeal is not conceded, with the consequence that time does not begin to run. I can envisage situations where the fact that there is an internal appeal may well be material to the question whether or not time should be extended, but it cannot in my view delay the commencement of the limitation period itself.”

Elias LJ indicated that the position might be different if what was alleged were continuing systemic discrimination.